PLJ 2012
AJ&K 167
Present: M. Tabassum Aftab Alvi, J.
KHALIDA BEGUM
and another--Appellants
versus
MUHAMMAD RASHID
KHAN & 5 others--Respondents
C.A. No. 97 of
2009, decided on 14.07.2012.
Pleadings--
----It is
settled principle of law that a party cannot be allowed to plead its case
against pleadings. [P. 170] A
Mohammadan Law--
----Petition for
succession certificate--Legal heirs were entitled to receive amount of
Bank--Uterine brothers and sisters were not entitled to return, if there was
full sister--Validity--According to Mohammadan Law if
there being only one sister then consanguine sisters and brothers were not
excluded from inheritance--Consanguine sisters and brothers were not deprived
from inheritance under law. [Pp.
170 & 171] B & C
Sardar Abdul Rashid Chughtai, Advocate for Appellants.
Sardar Nazar Muhammad Khan, Advocate for Respondents.
Date of hearing:
14.7.2012.
Judgment
The supra titled
appeal has been directed against the impugned judgment of the learned District
Judge Bagh dated 01.10.2009, whereby besides
appellants, respondents herein, were also declared entitled to the heritage of
their step brother, Ali Haider Khan, deceased.
2. Precise facts forming background of the
instant appeal are that respondents, herein, filed a petition for succession
certificate before District Judge Bagh on 14.04.2008,
stating therein that Ali Haider Khan had died
issueless on 12.03.2008 and as legal heirs they were entitled to receive the
amount saved in A/C No. 295-08, National Bank of Pakistan, Sudhan
Gali Branch, compensation of damaged house and
arrears from Pakistan Railway where the deceased was employed. The respondents
craved for issuance of succession certificate in their favour.
3. The application was objected to by the
appellants, herein, alleging that respondents being uterine brothers and
sisters were not entitled to the heritage of the deceased.
4. The appellants, herein, on the same date i.e.
14.04.2008, also filed a petition for issuance of succession certificate,
reiterating almost the same grounds. It was stated in the application that
according to injunctions of Islam, commandments of the Holy Quran in Sura Al-Nisa, as well as Mahomedan Law, they were entitled to inherit the whole
moveable and immoevable property of the deceased
being `Zawil Farooz and Usba'. It was also stated that the respondents, herein, had
no concern with the property of the deceased being uterine brothers and
sisters.
5. The learned trial Court consolidated both the
petitions. After necessary proceedings issues were framed on 12.09.2008 and the
parties were directed to lead evidence in support of their respective
pleadings. At the conclusion of the trial the learned District Judge, vide
impugned judgment dated 01.10.2009, disposed of both the petitions in the
following manner:--
(I) Khalida Begum;
Appellant No. 1, being widow of the deceased was declared entitled to 10/40
shares i.e. 1/4 share;
(II) Ayesha Begum; Appellant No. 2, being real
sister of the deceased, 20/40 shares i.e. 1/2 share;
(III) 4 step brothers, 08/40 shares i.e. 2
shares per brother and
(IV) 2 step sisters, 2/40 shares.
6. Feeling aggrieved from the said judgment, the
appellants, herein, were constrained to file the instant appeal on 22.10.2009.
7. Sardar Abdul Rashid
Chughtai, Advocate, the learned counsel for the
appellants, while reiterating the grounds raised in the appeal and referring to
Section 109 of Mahomedan law, argued that according
to the injunctions of Islam and Mahomedan Law,
uterine brothers and sisters were not entitled to return, if there was full
sister. In this regard, the learned counsel, besides, referring to Sura Al-Nisa, verses No. 11 &
176 also placed reliance on a case titled Syed Lal Hussain Shah V. Mst. Robina Shaheen
and another (2000 SCR 63). The learned counsel maintained that the trial Court
fell in grave error while passing the impugned order and craved that the same
may be quashed by declaring that the respondents were not entitled to
succession certificate regarding moveable and immoveable property of the
deceased.
In case of Syed Lal Hussain
Shah, ibid, it was held by the apex Court as under:--
"13. To examine this contention we may first refer
to the `Nas' referred by him translated in English it
reads as follows:--
(i) Share of a
son is double than the daughter;
(ii) If the heirs of the deceased are only
two or more daughters then they will get 2/3 of the estate and if there is only
one daughter she takes half of the estate............
14. All commentators are agreed that the
interpretation of the above is that if a Muslim dies leaving behind one
daughter and no other heir she takes half of the estate. When we turn to Shia Law of Inheritance we find that it is also the same.
According to Shia Law if there is no son and there is
only one daughter her share is one half; if there are two daughters or more
they inherit 2/3rd. Sunni law is the same. However, in Shia
Law, unlike the Sunni law, if there is one daughter she excludes all other
heirs including brothers of the deceased. This rule is not inconsistent with
rules of inheritance ordained by Allah in the Holy Quran. When there are no
other heirs, half of the estate would still be available after giving one half
to the daughter. In this situation doctrine of return ("Radd") applies and the residue is also allotted to the
daughter. It may be mentioned that doctrine of return ("Radd") is not peculiar to the `Shias'
but is also a part of the `Sunni' system of inheritance. In this view of the
matter we do not find any force in the contention of Mr. Abdul Aziz Chaudhry that Shia law on the
subject is inconsistent with Holy Quran."
8. Sardar Nazar Muhammad Khan, Advocate, the learned counsel for the
respondents, while controverting the arguments
advanced on behalf of the appellants, submitted that the trial Court, neither
committed any illegality nor the impugned order was passed in contradiction to
the injunctions of Islam as well as Mahomedan Law,
hence, prayed that the appeal may be dismissed.
9. After hearing the learned counsel for the
parties at great length, I have perused the contents of appeal and examined the
record made available, as well.
10. A contemplate perusal of the verses of the
Holy Quran i.e. Verses No. 11 & 176 of Sura Al-Nisa, reveals that if a widow has no child then she will be
entitled to 1/4th share from the property of her husband and if a full sister
is alive, she will be granted 1/2 share from moveable and immoveable property of
her deceased brother. Both the appellants being widow and real sister of the
deceased were granted the same shares by the Court below. Even the learned
counsel for the appellants, frankly conceded that both the appellants were
granted their respective shares, strictly according to the injunctions of the
Holy Quran as well as Mahomedan Law. However, his
contention was that as the respondents were step brothers and sisters of the
deceased, therefore, they were not entitled to residuary shares which returned
to Appellant No. 2 being full sister as visualized by Section 109 of Mahomedan law which is reproduced as under:
"Uterine
Brothers and sisters when excluded from "Return".--If there are
uterine brothers or sisters, and also full sisters, the uterine brothers and
sister are not entitled to participate in the Return, and the residue goes
entirely to the full sisters. This rule does not apply to consanguine sisters.
Consanguine sisters and uterine brothers and sisters divide the Return in
proportion to their shares."
A bare reading
of the above-mentioned provision of law makes it clear that the same was not
attracted in the given case. According to pleadings of the parties and record
Appellant No. 2 and the respondents were not uterine brothers and sisters who
were in fact consanguine brothers and sisters. It is settled principle of law
that a party cannot be allowed to plead its case against the pleadings.
Therefore, the above provision of law and cited precedent are not helpful to
the appellants.
11. According to Mahomedan
Law if there being only one sister then consanguine sisters and brothers are
not excluded from inheritance. In this regard `principles of Mahomedan law' by Sir
